If the music is in the public domain and you get the sheet music as it exists in the public domain you can just copy it into some midi program without having to hire a whole band.
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DerekFeb 8 '12 at 15:04

Even though you obviously can't use a copyrighted performance without permission (even if the original score is out of copyright), can you find something you like public domain/creative commons on a site dedicated to them like musopen.org/about ?
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Jack V.Feb 28 '12 at 12:04

"I don't plan to make money off of my game." This does not matter in the eyes of the law and the copyright holder; if they can and want, they're entitled to start legal procedures against you. If you're to release a game, get a lawyer before you do.
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Alexandre VaillancourtMar 21 at 18:13

4 Answers
4

No.

In most cases... also, I am not a lawyer, find one they help.

Arrangements of, and recordings of, specific performances of classical music are both copyrighted separately. This means that even if a piece in its original form is in the public domain, the piece itself is still someone's active intellectual property.

So, when can you use classical music?

(Also, this list isn't exhaustive; get a lawyer, really.)

The piece needs to be in the public domain.

You have to have the sheet music as it exists in the public domain. This usually means originals, but sometimes people release their later arrangements to the public. It's safer to have someone that can confirm that it is the public domain arrangement and not someone's later copyrighted work.

You need to then perform & record the piece (yourself, or hire a band or orchestra to play the piece. Make sure you get the rights when you do this also)

Then there may be a few more things to consider. But when it comes down to it unless you are an awesome musician with a lot of time on your hands to find music that is in the clear (and have a lawyer to confirm that it is) you'd save a lot of money to just license music. If you are an awesome musician, you still save a lot of time by just licensing music.

If I understand you rightly. I can "perform & record" that music and use it in my project?
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Pavel RyzhovFeb 7 '12 at 15:58

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@PavelRyzhov Potentially. It depends on the things listed above. But if you happen to have a public domain publication of the music then you can preform and record your own copy of it.
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Noctrine♦Feb 7 '12 at 16:33

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@PavelRyzhov: In some cases there are also royalty-free recordings of public domain works.
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JefromiFeb 8 '12 at 2:47

Music goes under public domain automatically after 80 years unless specified by a certain agency - some themes and tunes cannot be copyrighted because of their widespread nature. The other thing about this particular law is that the recording of the music does not go into public domain for a lot longer. If you were to use a recording of music created in the 20's (and not continuously copyrighted) then that would be legal, but if the recording was from the 50's then you would be breaking the copyright law.

This is good knowledge to have because that means that you may record any performance that you put on if the music itself is in the public domain and there is nothing that anyone can do about it. If you can play a symphony that you have the music to then putting it in your game is just fine. Using the British Orchestra's 2007 recording of Bach is complete copyright infringement.

The copyright isn't on the notes of the musical work, it's on the specific recording that you will most likely run into issues with.

If you have a keyboard and play out Fur Elise and put that in your game, nobody will go after you. The musical score is in the public domain.

But, the musicians and recording company who produced a particular Beethoven recording must be paid for their production costs, as well as the fact that they sat and played the session -- as such you cannot just buy a copy of that recording and use it in your game -- you have to pay additional fees if you plan to use in something that will be further distributed.